On 4 September 2014, the Decree containing the amendments concerning the soil remediation (Decree amending several dispositions of the Decree of 27 October 2006 on soil remediation and soil protection, hereinafter the "Amending Decree") has been published in the Official Gazette.
This "Amending Decree" will be effective on 1 January 2015, with the exception of certain particular points for which implementation decisions will have to be promulgated.
The "Amending Decree" is the result of an evaluation of five years of practical experience in implementing the last legislation concerning land. Based on the observations of The Public Flemish Waste Company (hereinafter OVAM) and consultation with stakeholders, the lacunas, imperfections and vaguenesses in the existing legislation have been identified to try to improve the legislation in order to guarantee the quality of soil legislation and make it, if possible, easier for implementation.
At regular times, adjustments will be clarified more precisely in further contributions on our website.
In this first contribution (i) the abolition of the obligation to report the transfer of land with an increased risk of pollution (ii) the implementation of the notion "shared" soil pollution, and (iii) the expropriation of land with an increased risk of pollution will be covered.
1. The abolition of the obligation to notify the transfer of land with an increased risk of pollution
The modification of the Soil Decree will lead to a considerable administrative simplification in case of transfer of land with an increased risk of pollution. In the future, there will be no need to notify the transfer.
Under the current legislation concerning the transfer of risk land, the transferor must notify OVAM of the foreseen transfer via a standard form.
In addition, a preliminary soil investigation report is required. This notification creates the opportunity for OVAM to force, if necessary, the transferor to carry out a descriptive soil investigation, which is used to define the extent and seriousness of the pollution. Without this notice, the foreseen transfer cannot occur legally. First, the soil investigation must be executed and evaluated. This may lead to further obligations. If the soil is contaminated and needs to be remediated, the transferor must have a soil remediation project, which addresses the pollution accordingly. Furthermore, he has to commit to a financial guarantee to actually accomplish the remediation work.
The existing regulations have been changed by the modification of the Soil Decree. The transferor is no longer required to notify OVAM of the transfer of land with an increased risk of pollution. Therefore the notification form disappears. Moreover, the "Amending Decree" determines when the transferor has to take measures to let the transfer happen. This is for instance the case when OVAM judges on the basis of the mandatory preliminary soil investigation that a descriptive soil investigation is necessary.
In the modified regulations, people involved in the transfer (transferor, transferee, acting notary) have to check which preliminary soil investigation or soil remediation obligation is required on the basis of the information stated in the soil certification or in the certificate of conformity of the preliminary soil investigation.
The abolition of the obligation to notify the transfer of land with an increased risk of pollution will be effective on 1st January 2015
2. Solution for the mixed soil pollution - setting-up of the "shared" soil pollution
The "Amending Decree" provides for a new approach of pollution when a number of people have a remediation duty. In case of a so-called "shared" soil pollution, the pollution has occurred during different periods and/or different lands, whereupon polluted substances have blended. There are therefore a number of people responsible for the remediation, but it is (technically) not possible to determine exactly who is responsible for which part of the pollution.
Under the existing regulations, the people responsible for the remediation try, trough mutual consultation or, eventually with help from OVAM, to find an agreement concerning the (financial) approach and the remediation of "shared" soil pollution. If parties cannot reach an agreement, a judge has to decide.
In the new amended Soil decree, a specific rule has been created for that kind of "shared" soil pollution.
If the people subject to the remediation cannot find a solution by mutual agreement or via mediation, then OVAM can formally qualify soil pollution as"shared" soil pollution. In this case, they are held jointly liable. The financing is based on an allocation key determined by OVAM.
These new regulations must contribute to reaching an effective solution, even in complex cases relating to "shared" soil pollution. This part of the "Amending Decree" will not be effective on 1st January 2015. Regarding the determination of the allocation key, an implementing decision is indeed still necessary.
3. The abolition of the specific rules about the expropriation of land with an increased risk of pollution
As a result of the "Amending Decree", the obligation of soil investigation in case of expropriation will be removed.
The current Soil Decree contains specific regulations for the expropriation of land. The expropriating authority must carry out a preliminary soil investigation in case of expropriation of a risk land. If pollution emerges from the soil investigation, and an additional soil investigation is necessary, the expropriating authority will have to accomplish a descriptive soil investigation. Only after the declaration of conformity of the descriptive investigation by OVAM, with the result that the expropriating authority knows the full picture of the contamination, the expropriation can take place.
The legal obligation of soil investigation is no longer required. A normal careful authority will also priory ascertain, without any legal obligation, whether or not the pollution can hinder the use of the land. The abolition obviously implies that the expropriating authority receives the right to carry out, if required, a soil investigation on the land it wants to expropriate.
However that cannot lead to a state of uncertainty about the remediation duty for the soil pollution. Hence, said obligation is explicitly laid down. The basic thought is that the execution of soil remediation happens after the expropriation and that the (independent) remediation duty for the pollution rests on the expropriating authority. Therefore, it is logical that the remediation duty of the expropriated landlord, or the manager, or the user of the land, is left out at the time of the expropriation.
Thus, it is logical that the estimated costs of the descriptive soil investigation or soil remediation will be taken into account when the compensation for expropriation is determined.
In this regard, the "Amending Decree" provides for a specific regulation. At the time of the determination of the value of the land, the charges on the land must be taken into account. The value of the land before the remediation will without a doubt be influenced by costs that relate to the preliminary soil investigation and to the soil remediation for a buyer. In the case where costs of the descriptive soil investigation and/or of the soil remediation are carried by the expropriating authority, they would be taken into account for the determination of the value of the expropriated land and a reasonable compensation for expropriation will be granted to the expropriated person. The settlement of the compensation for expropriation is however not done in case the remediation duty before the expropriation has to be borne by the manager (as far as he is not the landlord) or the user of the expropriated land. In that case, the expropriating authority can recover the costs of the descriptive soil investigation or of the soil remediation from the person responsible.
The abolition of the specific regulations for expropriation of land with an increased risk of pollution will be effective on 1 January 2015.
